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Annan-Yartey v. Securitas Security Service USA Inc.

United States District Court, D. Hawaii

June 18, 2018

NAPOLEON T. ANNAN-YARTEY, SR., Plaintiff,
v.
SECURITAS SECURITY SERVICE USA INC.; HAWAII DEPARTMENT OF TRANSPORTATION (AIRPORT DIVISION); DEPARTMENT OF STATE OF HAWAII SHERIFF DIVISION (DIS); STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY; and DOES 1-10, Defendants.

          FINDINGS AND RECOMMENDATION TO: (1) DISMISS FIRST AMENDED COMPLAINT WITH LIMITED LEAVE TO AMEND; AND (2) DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

          KENNETH J. MANSFIELD UNITED STATES MAGISTRATE JUDGE.

         On May 11, 2018, Plaintiff Napoleon T. Annan-Yartey, Sr. (“Plaintiff”), proceeding pro se, filed his Amended Complaint (“First Amended Complaint”) against the following defendants:

(1) Securitas Security Service USA Inc. (“Securitas”);
(2) Hawaii Department of Transportation (Airport Division) (“DOT”); (3) “Department of State of Hawaii Sheriff Division (DIS)” (“DIS”); (4) State of Hawaii Department of Public Safety (“DPS”); and (5) Does 1-10 (“Doe Defendants”).[1] ECF No. 9. That same day, Plaintiff filed an Application to Proceed in District Court Without Prepaying Fees or Costs (“IFP Application”). ECF No. 10.

         For the reasons set forth below, the Court FINDS AND RECOMMENDS that the district court DISMISS Plaintiff's First Amended Complaint WITH LIMITED LEAVE TO AMEND as discussed below. The Court also RECOMMENDS that the district court DENY WITHOUT PREJUDICE Plaintiff's IFP Application.

         BACKGROUND

         Plaintiff filed a “Civil Rights Complaint to 42 Section 1983” (“Complaint”) on March 19, 2018. ECF No. 1. That same day, Plaintiff also filed his first IFP Application. ECF No. 2. On April 6, 2018, this Court issued its Findings and Recommendation to: (1) Dismiss Complaint With Limited Leave to Amend; (2) Deny Plaintiff's Application to Proceed in Court Without Prepaying Fees or Costs (“April 6, 2018 F&R”). ECF No. 5. On May 11, 2018, the district court issued its Order Adopting Magistrate Judge's Findings and Recommendation (“May 11, 2018 Order”).[2] ECF No. 8.

         In the May 11, 2018 Order, the district court granted Plaintiff leave to file an amended complaint curing the deficiencies outlined in the April 6, 2018 F&R by June 12, 2018. Id. at 2. The district court also granted Plaintiff leave to file a second IFP Application. Id. Plaintiff timely filed his First Amended Complaint and second IFP Application on May 11, 2018. ECF Nos. 9, 10.

         DISCUSSION

         I. The First Amended Complaint

         A. Standards of Review

         1. Subject-matter jurisdiction

         The court may dismiss sua sponte a complaint for lack of subject-matter jurisdiction. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co. v. Champaign Mkt. Place, LLC, 350 F.3d 691, 693 (7th Cir. 2003) (“[I]nquiring whether the court has jurisdiction is a federal judge's first duty in every case.”); Fed.R.Civ.P. 12(h)(3). “Federal courts are courts of limited jurisdiction, ” possessing “only that power authorized by Constitution and statute.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (internal quotation marks omitted) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)).

         Plaintiff bears the burden of establishing subject-matter jurisdiction. Kokkonen, 511 U.S. at 377. Plaintiff must allege sufficient facts to show a proper basis for the court to assert subject-matter jurisdiction over the action. See Smith v. McCullough, 270 U.S. 456, 459 (1926) (“The established rule is that a plaintiff, suing in federal court, must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment.”); see also Fed. R. Civ. P. 8(a)(1).

         2. Screening the complaint

         The Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to a mandatory screening, and order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief can be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to dismiss sua sponte an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).

         To state a claim, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that lacks a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a claim. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

         Plaintiff is appearing pro se; consequently, the court liberally construes the First Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons, “repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment”).

         B. Plaintiff's Factual Allegations

         The First Amended Complaint alleges that, at approximately 3:00 a.m. on July 4, 2017, Plaintiff was at Honolulu International Airport to board a flight to New York. ECF No. 9 at § IV, ¶ 17. As Plaintiff was walking with his baggage towards the ticket counter, a Securitas security guard (“Securitas Doe 1”) allegedly blocked Plaintiff's path and asked him to stop. Id. at ¶¶ 18-19. Plaintiff alleges that a second Securitas security guard (“Securitas Doe 2”) then grabbed Plaintiff's arm and said, “I am detaining you.” Id. at ¶ 20.

         Plaintiff asked Securitas Does 1 and 2 on what basis they were detaining him “and what the probable cause was[.]” Id. at ¶ 21. Securitas Does 1 and 2 did not respond to Plaintiff and, instead, asked if the bags Plaintiff was carrying belonged to him. Id. at ¶ 22. When Plaintiff said the bags were his, Securitas Doe 1 asked Plaintiff to hand over the bags for inspection. Id. at ¶¶ 23-24. In response, Plaintiff said, “no by law the TSA is the authorized Agency allowed to search my bags[.]” Id. at ¶ 25.

         At that point, Securitas Doe 2 called a third Securitas security guard to the scene (“Securitas Doe 3”). Id. at ¶¶ 26- 27. Securitas Doe 3 asked to see Plaintiff's airline ticket, and Plaintiff showed it to him. Id. at ¶ 29. Securitas Doe 3 then asked to inspect Plaintiff's bags, and said he would prevent Plaintiff from boarding his flight if he did not comply. Id. at ¶ 30. Plaintiff again refused, and asked Securitas Does 1, 2, and 3 whether they were authorized by TSA to inspect his bags.[3] Id. at ¶ 31.

         Plaintiff alleges that when he refused to surrender his bags for inspection, the Securitas Does began beating Plaintiff. Id. at ¶¶ 33-36. Plaintiff alleges that “[a]pproximately four Guards jumped him and got on top of Plaintiff, punching, Kneeing, and kicking” Plaintiff. Id. at ¶ 41. Plaintiff alleges that Securitas Doe 3 put Plaintiff in a choke hold. Id. at ¶ 33. Plaintiff alleges that “Securitas Security guards used excessive and unreasonable force against” Plaintiff and “subsequently arrested and detained him without a probable cause or legal justification[.]” Id. at ¶¶ 46, 52. Plaintiff also alleges that Securitas issued a criminal citation and initiated criminal proceedings against him. Id. at ¶ 47. Plaintiff alleges that “[t]he beating and ‘Choke' hold, cause[d] plaintiff to have heart problems, with head, back and leg injuries[.]” Id. at ¶ 39. Plaintiff also alleges that the altercation with the Securitas Does caused him to suffer “severe emotional distress.” Id. at § V, ¶ 112.

         Plaintiff alleges that Securitas was “hired, contracted, and paid by [DOT] to provide security services at Honolulu International Airport.” Id. at § IV, ¶ 55. Additionally, Plaintiff alleges that the Securitas Does were “acting in the course and scope of their employment” with DOT. Id. at ¶ 3.

         Plaintiff alleges that Securitas “failed to adequately and properly screen and hire” employees. Id. at ¶ 120. Plaintiff further alleges that Securitas “failed to act with ordinary care in failing to properly train and supervise [its] officers with respect to proper procedures on detention and arrest of citizens . . . .” Id. at § V, ¶ 117.

         The First Amended Complaint asserts the following claims against all Defendants: (1) Count I - Violation of Fourth and Fourteenth Amendments; (2) Count II - Excessive Force; (3) Count III - False Arrest; (4) Count IV - False Imprisonment; (5) Count V - Assault; (6) Count VI - Battery; (7) Count VII - Intentional Infliction of Emotional Distress; (8) Count VIII - Negligence; (9) Count IX - Failure to Properly Screen and Hire; (10) Count X - Failure to Properly Train; (11) Count XI - Failure to Supervise and Discipline; (12) Count XIII - Hawaii Civil Rights Violation; and (13) Count XIV - Punitive Damages. Plaintiff also asserts Count XII against DPS for municipal liability based on Securitas' ...


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